The Special Master

The court has ruled that Lawrence Lessig holds no anti-Microsoft bias. But that doesn't mean Bill Gates should rest easy.

Last December, when Judge Thomas Penfield Jackson appointed Lawrence Lessig to serve as a "special master" in the antitrust case of US v. Microsoft, the news immediately plunged the quiet, 36-year-old Harvard University law professor into the spotlight. The San Jose Mercury News called him "techno-savvy." The New York Times deemed him "one of the leading intellectuals of his generation in American law." Microsoft's lawyers were less generous, arguing that Lessig should be removed from the case for having shown "clear bias" against the company.

Judge Jackson flatly rejected Microsoft's bias claim, giving Lessig until May 31 to investigate Microsoft's business practices and report "findings of fact and conclusions of law" that the court will consider in making a final ruling in the antitrust case. As special master, Lessig has been invested with much of the authority of a federal judge – including the power to issue subpoenas, gather testimony, and find parties in contempt.

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Lessig's report is likely to have a significant impact on the destiny of Bill Gates's US$150 billion software empire. The philosophical differences between the two men are noteworthy – while Gates is famous for his single-minded determination to consolidate Microsoft's market dominance, Lessig is best known for his efforts to protect individual liberty by preserving the Internet's open architecture.

In his academic work, Lessig has considered three types of regulation that govern life in cyberspace. The first is law, "the most obvious regulatory constraint." The second is social norms – the informal rules of netiquette that guide the Internet's complex sociology. Lessig believes these forms of regulation are optional because they function as directives that one can choose not to obey. But the same cannot be said for the third type of regulation – technological constraints inscribed into the Internet's software architecture. As he wrote in this magazine last year, "Software code – more than law – defines the true parameters of freedom in cyberspace." (See "Tyranny in the Infrastructure," Wired 5.07, page 96.)

During the months ahead, Lessig may bring these theories to bear in the Microsoft case. As a law professor, he proposed that "the question of what the architecture of cyberspace should be is not a neutral question. We need to think about it in political terms." Now, as special master, he has been asked to resolve a thorny political controversy: Which system of regulation best serves the interests of cyberspace – Uncle Sam's antitrust laws, or Bill Gates's operating-system code?

In the summer of 1996 Internet users raised a ruckus after learning that the P-Trak service run by Lexis-Nexis was selling individuals' Social Security numbers, addresses, and unlisted phone numbers. The outcry prompted members of Congress to consider legislation that would prevent credit bureaus from selling such information to lookup services such as P-Trak. Instead, Federal Trade Commission chair Robert Pitofsky persuaded a few key senators to accept his mantra that "voluntary regulation by industries works best."

In December Pitofsky unveiled an agreement among the government, lookup services, and credit bureaus. Among the 14 parties to the agreement, three major credit bureaus and two "information brokers" have been previously cited by the FTC for violating consumer regulations, while three of the lookup service operators have been caught violating the ethical guidelines of the Direct Marketing Association. The new plan establishes a set of self-regulation principles that will be monitored by independent auditors.

Critics charge that the proposals don't go nearly far enough to protect individual privacy. Credit bureaus can still sell personal information obtained from credit reports. On the other hand, the plan requires the services to provide marketers only limited access to sensitive information, to certify that certain "qualified subscribers" – like law enforcement agencies and private investigators – use the information only for "appropriate uses," and to deny the general public access. The agreement also gives consumers the opportunity to have personal data removed from the databases, although in practice it provides no way to find out which services maintain the information, or how to get in touch with them.

On the sixth floor of an office building in midtown Manhattan, the studio space of Notwork Development Labs serves as an after-hours playpen for 11 hackers who have banded together to split the cost of rent, utilities, and a T1 Internet connection. Notwork also serves as a sort of safe house – hackers from Amsterdam and London have bedded down in the studio, which has also been host to underground luminaries Phiber Optik and Bernie S. "It's not a hostel," says Notwork member Ryan Nelson. "But we've got lots of friends from other places who prefer a crash pad with a T1 to a US$140 hotel."

The Federal Communications Commission is taking steps to stamp out fun and games – and perhaps illegal collusion – during spectrum auctions. In the past, bidders occasionally signaled one another by submitting bids for extremely specific amounts that could be decoded by matching each number with a corresponding letter on a telephone keypad. In most cases the messages were harmless. During a 1995 auction for 99 wireless phone licenses – which raised US$7.7 billion for the US Treasury – GTE was in a particularly tough battle with Sprint. During one round GTE bid $47,248,363 – the last six digits of which spell "Bite Me."

The FCC has long known that these messages were flying around, but the agency never gave them much attention until it received a complaint last year from a losing bidder, High Plains Wireless, that claimed some bids contained secret messages that amounted to illegal collusion. The complaint prompted a formal investigation by the FCC, which, in turn, prompted the Justice Department to open its own investigation. Both inquiries are ongoing.

If the Feds adopt a strict interpretation of the law – which seems unlikely – any coded message could be deemed illegal, forcing the government to reauction dozens of licenses and delaying the delivery of wireless services to the public. But while the investigation continues, the FCC hopes to head off any future problems by simply changing the rules of the game – players in all future spectrum auctions must submit bids in nice round numbers.

After helping to defeat the CDA, grassroots activists may become victims of their own success. By Rebecca Vesely

According to Jon Lebkowsky, cofounder of EFF-Austin, the Supreme Court's decision to strike down the Communications Decency Act was great for the Internet, but horrible for his seven-year-old activist organization. "After the CDA decision, there wasn't a lot of energy for EFF-Austin," Lebkowsky says. "Grassroots organizations are strongest when there is a demon defined."

The CDA challenge marked the first time that civil liberties activists used the Internet to reach the public, and their success provided an impressive demonstration of the medium's political potential. Online demonstrations, such as the Paint the Web Black effort of 1995, were simple, cheap, and extremely effective. But today, as Internet issues like privacy, security, and content control move into the mainstream, many small online groups feel that large organizations like the ACLU have taken over their niche. "In the post-CDA world, our role is to gather information and do research, which can then be used by larger groups that can afford to file expensive legal cases," says Bennett Haselton, founder of Peacefire, an online activist group for minors.

Last year Haselton, a Vanderbilt University student, revealed that Cybersitter, a popular Internet filtering program, blocked access to such sites as Mother Jones magazine, the National Organization for Women, and organizations for gay and lesbian youths. "Bennett is a good example of the effectiveness of grassroots organizing," says Jonah Seiger, an Internet consultant and former communications director for the well-heeled Center for Democracy and Technology in Washington, DC. "We wouldn't be having a debate over blocking software if it wasn't for Bennett."

The White House's new hands-off approach to the Net has only made things worse for small groups by intensifying the struggle to garner support. "Apathy is rampant," says Scott Brower, executive director of EFFlorida, which, like EFF-Austin, is not affiliated with the better-known San Francisco-based Electronic Frontier Foundation. "People are happy to hear we are doing this work, but when it comes to getting them to volunteer, it's difficult to get anyone to commit."

The groups that have done the best in the post-CDA climate are those that have honed in on a single, high-profile topic. NetAction, a two-person activist shop in Northern California, now focuses primarily on its campaign to "stop Microsoft from seizing control of cyberspace." Sun Microsystems, one of Microsoft's chief nemeses, gave NetAction an undisclosed sum of money last fall.

But most other grassroots groups do not have corporate sponsors. "We chose not to seek corporate dollars, because we did not feel we could compete with Washington insiders," says Shabbir J. Safdar, founder and advisory board member of the New York-based Voters Telecommunications Watch. In December Safdar stepped down as head of VTW to start an Internet consulting firm in Washington, DC, leaving the future of VTW hanging in the balance. And some activists complain that foundations consistently reject funding proposals from small groups and that most grant money for online activism is directed toward projects that help disseminate Internet technology.

Although money is definitely an issue for the small groups, the nature of online activism keeps costs low. "The Web server is our only expense, and that costs about a dollar a day," says Peacefire's Haselton. EFF-Austin supported itself for years on T-shirt sales and special book-signing parties by cofounder and SF author Bruce Sterling. And, as for all the paperwork needed to get nonprofit status for tax deductions, most haven't gotten around to it.

When another big free-speech fight comes around, grassroots groups say they will be ready. But for now, many are looking for ways to consolidate resources. In January, EFF-Austin decided to change its name to EF-Texas, in hopes of attracting activists from other parts of the Lone Star State. "It's tough," says Lebkowsky. "Getting these guys together is like trying to organize anarchists."

To understand who really has clout in the political world, follow the money. Marcus O'Connell, a financial analyst in Concord, California, heard rumors that property developers were giving large sums of cash to members of the city council, but when he visited city hall to check the contribution records, he found a handful of documents stuffed in a binder. "We needed a database," O'Connell says. "It's the only way to make sense of all the different entries."

Inspired, O'Connell became the first private citizen in the United States to compile a database of local campaign contributions and post it on the Web (pwp.value.net/marcus/campfin/). Other such resources exist in cyberspace, but they mostly concern state and federal campaigns and are produced by experts at nonprofit organizations. O'Connell's effort was a one-man job, created with Excel spreadsheet software to shed a little light on politics in his hometown.

O'Connell's number crunching has shown that members of the Concord City Council have long been accepting heavy-duty contributions from local developers, sanitation companies, and lawyers. His most eye-opening revelation was the disclosure that since 1993, Bill Graham Presents, a national concert promoter, has sidestepped contribution caps and funneled more than US$11,000 to council members through company employees who made some 27 separate donations. Coincidentally, the council recently approved a costly overhaul of the Concord Pavilion, a lavish, city-owned outdoor amphitheater and concert venue.

O'Connell hopes the Net can put voters back in the game by giving them unfiltered access to information. "We have the capability now," O'Connell points out. "It's in our hands."

Next time, think twice before you copy that floppy. On December 16, President Clinton signed the No Electronic Theft Act, a measure sponsored by Representative Bob Goodlatte (R-Virginia) that criminalizes the unauthorized "reproduction or distribution" of computer software, books, musical recordings, or videos worth at least US$1,000. Designed to close a loophole that may have legalized noncommercial duplication of copyrighted material, the new law targets "any person who infringes copyright willfully," with criminal penalties that range from fines to six years in prison.

Overprotective digital-copyright rules, much like the ones that were proposed and rejected at a December 1996 diplomatic conference in Geneva, have resurfaced in the European Community's latest plan to implement the World Intellectual Property Organization Copyright Treaty. Under the proposals, nations of the European Union would be required to treat almost all temporary and indirect copies of copyrighted works in digital form as "reproductions" subject to copyright regulation. In addition, the legislation would curtail the authority of EU nations to enact or maintain fair or private-use privileges in their national laws. The measure also contains a byzantine provision that would outlaw many legitimate technologies that have incidental infringement-enabling uses.

This may be good news for US high tech companies, as the EC's overzealous copyright proposals could strangle Europe's nascent high technology industry. On the other hand, if copyright maximalism prevails in Europe, Clinton administration officials may try to resurrect similar legislation that has been stalled in Congress for the last two years. Fortunately, Senator John Ashcroft (R-Missouri) and Representatives Rick Boucher (D-Virginia) and Tom Campbell (R-California) have introduced legislation in Congress that is far more enlightened and balanced – in the form of S 1146 and HR 3048. Meanwhile, the European proposal may improve when it's reviewed by the European Parliament and the European Council of Ministers, particularly if opponents lobby for changes along the lines of the Ashcroft-Boucher-Campbell bills.